Bonum Certa Men Certa

Still 'Pulling a Berkheimer' Almost 4 Months Down the Line

R.I.P.



Summary: Refusing to let go or leave behind an opportunity to bash patent invalidations, the patent microcosm just keeps bringing up Berkheimer v HP ad infinitum

When the Federal Circuit delivered a judgment on Berkheimer the Patent Trial and Appeal Board (PTAB) did not seem to mind as much as the patent extremists minded; Berkheimer just wasn't a very major case, so Iancu's comments revealed whose side he was on. Watchtroll says that the "USPTO asks Federal Circuit to Vacate, Remand 101 Case to Board in Light of Berkheimer," but as we noted earlier today (and will show later today), this is the exception rather than the norm. They're cherry-picking. Berkheimer is very rarely brought up in today's patent cases (rulings/opinions/determinations/judgments/arguments).

A week and a half ago (on May 31st) there was a case related to this. Dechert LLP was trying to 'pull a Berkheimer' (we say 'pull', but they say things like "Berkheimer effect") in order to shed uncertainty and doubt about many decisions to invalidate patents at the Patent Trial and Appeal Board as well as the Federal Circuit. From their summary:

The United States Court of Appeals for the Federal Circuit refused rehearing en banc of two significant decisions regarding patent-eligibility under ۤ 101 (Aatrix and Berkheimer) on May 31, with a majority of active judges on the court affirming that the patent-eligibility inquiry, though a question of law, implicates subsidiary questions of fact. The effect of these cases will be to make it substantially more difficult to invalidate patents as being directed to patent ineligible abstract ideas or natural laws before trial. There was substantial uncertainty as to whether the earlier panel decisions would be adopted by the full Federal Circuit, but that uncertainty has now been partly resolved.


As we showed last weekend, they had explicitly expressed reluctance to deal with that case/issue any further. Berkheimer is just some perceived 'lifeline' or 'rope' to patent maximalists, such as the anti-PTAB site Anticipat. It mentioned Berkheimer 4 days ago when it said:

Since the two weeks since we predicted that the PTAB would start to dramatically change its outcomes of rejections under Section 101, we have seen no such change. Since then, recap emails have mostly shown affirmances (only 7 reversals of 86 total Section 101 decisions = 8% reversal rate). But a decision in yesterday’s recap email shows precisely the kind of rejection analysis that is expected to become more mainstream at the PTAB.

Ex Parte Galloway et al (PTAB May 22, 2018) reversed the judicial exception rejection under Section 101 because of a lack of evidence. The panel, consisting of Donald E. Adams, Demetra J. Mills, and Ulrike W. Jenks, found that the Examiner had not provided evidence to support a prima facie case of patent ineligible subject matter.

The panel cited to Berkheimer in support of an apparent defective step 2 analysis: “The Examiner has not established with appropriate factual evidence that the claimed method uses conventional cell counting methods.”


They're again cherry-picking while openly admitting (as highlighted above) that they were wrong. Berkheimer has virtually no bearing/significance. As we said many times before, judges have left Berkheimer behind and the only ones who keep bringing it up are the patent maximalists.

It's time to leave Berkheimer in the past and stop 'pulling a Berkheimer' every other day/week.

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